In effect on December 18, 2018, new legislation in Canada will increase the maximum penalties for DUIs from 5 to 10 years. Due to recent marijuana legalization across Canada, legislators are seeking to discourage driving while high, raising the penalties for any type of impaired driving as a result. These changes will have significant implications for immigration, as they will make it increasingly difficult to overcome inadmissibility to Canada. Offenders with even a single DUI can be turned away at the border – a huge obstacle for many Americans with business or family ties in Canada.
DUIs and other alcohol-related driving convictions will soon be considered “serious criminality”; offenders will be inadmissible to Canada and must either apply for a Temporary Resident Permit (TRP) to enter Canada for a significant reason, or wait at least 5 years after their sentence to apply for Criminal Rehabilitation. To boost chances of entry to Canada, it will be increasingly valuable to plead down a DUI charge to a lesser offence, hopefully avoiding inadmissibility altogether.
Pleading Down Pending Charges
If your client has pending charges, you may have the opportunity to make a life-changing decision. You might avoid your client’s inadmissibility by pleading down their offence.
For example, say your client is charged with a DUI. This client works for a company that frequently does business in Canada, and the client may be asked to travel across the border to negotiate deals. If you feel the DA or judge may be receptive to a plea deal due to the Canadian consequences of a DUI conviction, we can prepare a foreign legal opinion. The process will look like this: you contact us – we assess the equivalence of your client’s charges and determine that if convicted as charged, your client will be inadmissible to Canada. Working alongside you, we build upon your recommendations for possible pleas for your specific client to provide a tailored Legal Opinion Letter, which will explain the additional penalties imposed by Canadian law and the negative implications of your client’s current charges on their employment. Your client can present the Letter to a judge or DA in an effort to reduce the charges against them. The Letter will also outline proposed offences that would not render your client inadmissible. Ideally, you should seek to plead down your client’s charges to an offence that does not involve alcohol, such as “disorderly conduct”, a speeding ticket, “reckless endangerment”, or possession of marijuana (in a case of drug impaired driving).
Many of our clients have had success with this approach, ultimately receiving convictions that did not bar entry to Canada, or, in situations where inadmissibility could not be entirely avoided, positioning themselves as much more likely recipients of relief through either a TRP or Rehabilitation.
Best Case: “Reckless Endangerment”
To avoid inadmissibility, an effective tactic can be to plead down a DUI or other alcohol-related charge to “reckless endangerment” (or “culpable negligence” in Florida). In Canada, there is no direct equivalent to the conviction of “reckless endangerment”, unless accompanied by another criminal conviction. Therefore, a client pleading guilty to “reckless endangerment” alone should not be inadmissible to Canada, so long as the DUI and other charges are dropped. To avoid confusion or delays at the border, clients should also carry their Legal Opinion Letter when travelling. If a border officer asks about their arrest or plea, the client may present the Letter to demonstrate how their conviction does not render them inadmissible to Canada.
Note that a “wet reckless” conviction, although it has lesser consequences than a DUI in some states, is treated essentially the same as a DUI in Canada and will still result in inadmissibility.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on Facebook, Twitter, and Linkedin.
